Question: Who are the derivative aliens?
Answer: Derivative aliens are the spouse and minor children of the principal alien who was petitioned for immigrant visa or labor certification.
Question: What is adjustment of status under Sec. 245(i)?
Answer: Aliens who are in the United States may adjust status to permanent resident. Adjustment of status under Sec. 245 (i) allows beneficiaries of visa petition or labor certification to adjust status despite (1) entering the United States without inspection, (2) working without authorization or (3) violating the terms of any nonimmigrant visa she might possessed, by paying a fine of $1000.
Question: Who qualifies for adjustment of status under Sec. 245(i)?
Answer: To qualify for adjustment of status under Sec. 245(i) the applicant must (1) have an immigrant petition or labor certification filed by April 30, 2001, (2) and if the immigrant petition or labor certification was filed between January 14, 1998 and April 30, 2001, the applicant must prove physical presence in the United States on December 21, 2000. The derivative spouse and children of the principal beneficiary also qualify if the petition or labor certification was filed by April 30, 2001. Derivative aliens do not have to prove physical presence in the United States on December 21, 2000.
Question: What are examples of derivative aliens who may qualify for adjustment of status?
Answer: Peter is a US citizen who filed an immigrant petition for his brother Primo in 1983. At the date the petition was filed in 1983, Primo has an 8 year old son named Derek. Derek is a derivative alien of an immigrant visa petition filed for Primo. If Derek is in the United States he qualified to adjust status under Sec. 245(i) because at the time of the visa petition Derek is a derivative child below 21 years of age.
Example 2. In the above example, Maria is the spouse of Primo when the petition by Peter was filed in 1983. Maria is a derivative beneficiary of the petition for Primo. If Maria is in the United States she can adjust status under Sec. 245(i) with Primo or with other visa categories currently available to her.
Note: This is not a legal advice.
Immigration News
On December 22, 2011, we received an approval of a waiver of misrepresentation from the Immigration Court for an alien who entered as single but actually married.
On November 7, 2011, we received an approval from the Immigration Court for waiver of misrepresentation for a person who entered the US as single but actually married. The person can now apply with naturalization.
On October 25, 2011, we received an approval of adjustment of status for an alien who was originally deported in absentia.
On September 22, 2011, we received an approval from USCIS for adjustment of status using cross chargeability that enabled the beneficiary to use the worldwide priority date (which is faster) instead of the Philippines priority date.
On August 30, 2011, we received an approval from Immigration Court of an adjustment of status for an alien who was previously denied by USCIS.
On July 28, 2011, we received an approval of adjustment of status for an alien who entered the U. S. without valid documents but qualified under Sec. 245(i).
On July 21, 2011 we received an approval for withholding of removal in Immigration court for an old lady who could not come back to her country because of political situation.
On June 28, 2011, we received an approval in Immigration Court for an adjustment of status. The applicant was previously denied on the I-130 petition because they did it without an attorney. We filed a second I-130 petition that was approved based on good faith marriage.
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Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. His offices are located at 17057 Bellflower Blvd. Suite 205, Bellflower, CA 90706 and 1290 B Street, Suite 205, Hayward, California 94541 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone (562) 461-1355 and (510) 538-7188.
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